Are Statutes Criminalizing Revenge Porn Constitutional?

There’s a movement afoot to pass statutes outlawing “revenge porn”—the malicious publication of images of intimate partners. Here’s the proposed state statute, drawn up by Florida law prof Mary Anne Franks:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.
(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.
(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

The question arises: Will such statutes pass Constitutional muster?

[Tl;dr: Not under current Supreme Court precedent. But there's a lot more to it, so read it.]

A little history

In Dun & Bradstreet v. Greenmoss Builders the Supreme Court in 1985 addressed the question of whether a private individual1 had to show actual malice2 to collect presumed and punitive damages3 for defamatory statements not involving matters of public concern.

Before that, in Gertz v. Welch the Court had held in 1974 that a private person suing for defamation must, at least if the defamatory statements involved matters of public concern, show actual malice in order to recover presumptive and punitive damages.4 The Court had left open the question of whether the same rule applied when the defamatory statements involved matters of private concern. It was that open question that the Court addressed in Dun & Bradstreet. The Court, noting that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection,” balanced the State’s interest in awarding presumed and punitive damages to a defamed person against the “incidental effect these remedies may have on speech of significantly less constitutional interest,” and concluded that the balance between speech not of public interest and the State’s interest in providing remedies for defamation favored allowing presumed and punitive damages without proof of actual malice where the subject of the defamation was not a matter of public concern.

That’s all by way of introduction to differing treatment of matters of “public concern” and private matters in the Supreme Court’s First Amendment jurisprudence. It has come into play only in civil cases, where the Court has balanced the good of the speech against the State’s interest.

There is also a line of Supreme Court cases (for example, 1983′s Connick v. Myers) in which public employees’ speech on matters of public concern was distinguished from public employees’ speech on matters of private concern, so that public employers could fire employees only for speech not involving matters of public concern. In these cases the Court recognized that “the State’s interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” In other words, those cases are a whole different thing than either the State’s providing civil remedies for speech torts or the State’s punishing speech crimes.

The U.S. Supreme Court has never applied a balancing test to statutes criminalizing speech. In 2010 in U.S. v. Stevens the Court considered the federal statute forbidding “crush videos”—videos showing the intentional illegal torture and killing of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government asked the Court to apply a balancing test to this statute, and find it constitutional. The court responded:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”

In other words, “No.” The Court will not apply a balancing test to decide whether a statute criminalizing speech passes First Amendment muster. The Court listed categories of speech historically and traditionally unprotected by the First Amendment—obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—and, conceding that “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law[,]” declined to find crush videos in such an unprotected category.

Back to Ms. Franks’s proposed statute

Ms. Franks’s proposed anti-revenge-porn criminal statute is a content-based speech restriction: it criminalizes disclosure of a photograph of a person having sex, but not disclosure of (for example) a photograph of a person writing a blog.5 Content-based restrictions on speech are presumptively invalid, and the State has the burden of showing that they meet strict scrutiny. So the best way to answer the question of whether such statutes are constitutional is to address the best arguments their proponents make in favor of their constitutionality.

Danielle Citron

Here’s law prof Danielle Citron, arguing that Franks’s proposed anti-revenge-porn statute is constitutional:

The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous.

The specific “matters of purely private significance” language is found in only one Supreme Court Case: Snyder v. Phelps. In that civil case,6 the language is mere dicta,7 not part of the holding in the case. As we have seen, though, the Court has held the distinction between public  and private concerns important only in civil cases; that distinction has never come into play in the Supreme Court’s consideration of a statute criminalizing speech.

Stevens would have been the perfect opportunity for the Court to hold that First Amendment rules are different for statutes criminalizing speech on matters of no public concern. The illegal torture of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value” not only is not a matter of public concern (the videos are created for “persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting”), but it has negative public concern—that is, the public has an interest in the quashing of illegal torture of animals, to which the crush videos are arguably integral.

So when Citron says, “The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous,” she is attempting to mislead the reader.8

Likewise Citron’s assertion that “Speech constituting privacy invasions on purely private matters can be criminalized consistent with the First Amendment’s guarantees.” The Supreme Court has never come anywhere close to such a holding; the only cases that Citron cites in connection with that assertion are civil cases.

“In cases involving private individuals whose sexually explicit images are published without their consent,” writes Citron, “it’s easy to [sic] why the public has no legitimate interest in viewing them.” What’s plain to Citron may not be plain to all. Many people plainly see why the public has no legitimate interest in viewing any sexually explicit images. Yet most sexually explicit interests (short of the obscene) are protected by the First Amendment. The permissible content of speech is not determined by the Church, nor by feminist legal theorists, nor by the majority of voters. To some people, nonconsensual images may have artistic value.

A similar shot at bamboozlement is Franks’s assertion that “The First Amend­ment doesn’t pro­tect threats, obscen­ity, child pornog­ra­phy, and a very long list of other things.” I said it here, but it bears repetition: In her work­ing paper on the sub­ject (PDF), Franks lists the cat­e­gories of speech that she thinks are unpro­tected: “stalk­ing, harass­ment, true threats, child pornog­ra­phy, incite­ment, obscen­ity, fight­ing words, libel, fraud, expres­sion directly related to crim­i­nal con­duct, or dis­crim­i­na­tion.” For this she cites Stevens. Stevens men­tions “obscenity…defamation…fraud…incitement…and speech inte­gral to crim­i­nal con­duct” in its enumeration of unprotected categories of speech. Stevens does not men­tion “harass­ment,” nor does it men­tion dis­crim­i­na­tion in the con­text of unpro­tected speech; fortunately for Franks, who substitutes anti-male ad hominems9 for cogent argument, much dis­crim­i­na­tory speech is clearly pro­tected.

Here are Franks’s five best arguments (from her “working paper”) for the constitutionality of her proposed statute:

Franks’s First Argument

1. The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different.

There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”

Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.

“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.

Franks’s Second Argument

2. The non-consensual disclosure of sexually graphic images is a matter of purely private concern, which the Supreme Court has held does not warrant the robust protection afforded to expression of matters of public concern. The Supreme Court has “long recognized that not all speech is of equal First Amendment importance. It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’ … In contrast, speech on matters of purely private concern is of less First Amendment concern.” While some matters of private concern may receive First Amendment protection, there must be some legitimate interest in the consumption of such images for this to be the case. There is no such legitimate interest in disclosing or consuming sexually explicit images without the subjects’ consent. Prohibiting the non-consensual disclosure of sexually graphic images of individuals poses “no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press.”

I dealt with the “purely private concern” argument above. The quote in Franks’s argument is from Dun & Bradstreet. As discussed above, this is not true in any way meaningful to the discussion of a statute criminalizing revenge porn.

The State doesn’t get to criminalize speech that it thinks is not legitimate. Stevens, again:

The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

The proposed private/public interest distinction would be a dangerous one. As the Supreme Court wrote in 2002 in Ashcroft v. Free Speech Coalition, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

Franks’s Third Argument

3. Sexually intimate images of individuals disclosed without consent belongs to the category of “obscenity,” which the Supreme Court has determined does not receive First Amendment protection. In Miller v. California, the Court set out the following guidelines for determining whether material is obscene: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest…; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Supreme Court provided two “plain examples” of “sexual conduct” that could be regulated:

“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”

Disclosing pictures and videos that expose an individual’s genitals or reveal an individual engaging in a sexual act without that individual’s consent easily qualifies as a “patently offensive representation” of sexual conduct. Such material moreover offers no “serious literary, artistic, political, or scientific value.”

Where Franks’s second argument was frightening, this one is risible. The rules for obscenity apply to “a work” or “material,” not to “a disclosure” or “a publication.” If the material that the complainant gave the defendant didn’t depict or describe sexual conduct in a way that would have been offensive to a given community when she gave it to him, it doesn’t magically do so when he republishes it.10

In addition, Franks stamps her foot over value. A photo republished without its subject’s consent may well have artistic value. Indeed, the nonconsensual nature of the publication may imbue an image with artistic value that it otherwise wouldn’t have, just as an objet trouvé has artistic value that was unapparent to its discarder.

Franks’s Fourth Argument

4. The “publication of private facts” tort is widely accepted by the majority of courts to comply with the First Amendment, although the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record. According to the Restatement (Second) of Torts, “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” In New York Times v. Sullivan, the Court observed that criminal statutes afford more safeguards to defendants than tort actions, suggesting that criminal regulation of conduct raises fewer First Amendment issues than tort actions. If so, then a carefully-crafted criminal statute prohibiting the publication of private facts—including the non-consensual publication of sexually intimate images—should pass constitutional muster.

This argument is at least a bit interesting. But “the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record” is misleading—the Supreme Court has yet to rule explicitly or implicitly on the constitutionality of this tort.11

A tort12 is not a crime, and the suggestion that “criminal regulation of conduct raises fewer First Amendment issues than tort actions” does not match what we observe in the Supreme Court’s First Amendment jurisprudence: as we saw in considering Dun & Bradstreet and the public / private concern distinction, the Court is willing to cut the State slack when it is providing citizens with redress that it is not willing to cut the State when it is putting citizens in prison.

Franks’s Fifth Argument

5. Because the non-consensual disclosure of sexually intimate images is a practice disproportionately targeted at women and girls, it is a form of discrimination that produces harmful secondary effects and as such is not protected by the First Amendment. The First Amendment does not protect discriminatory conduct, and regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment. Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of “expression,” have been upheld by the Supreme Court. Title II and Title VII of the Civil Rights Act of 1964, along with Title IX of the Education Amendments of 1972, all allow for the regulation of certain forms of speech and expression when they violate fundamental principles of equality and non-discrimination. Apart from the harm that non-consensual pornography inflicts on individual victims, it inflicts discriminatory harms on society as a whole. Like rape, domestic violence, and sexual harassment (i.e., abuses directed primarily at women and girls) non-consensual pornography reinforces the message that women’s bodies belong to men, and that the terms of women’s participation in any sphere of life are to be determined by their willingness to endure sexual subordination and humiliation. Nonconsensual pornography causes women to lose jobs, leave school, change their names, and fear for their physical safety, driving women out of public spaces and out of public discourse. Combating this form of sex discrimination is not only consistent with longstanding First Amendment principles, but comports with equally important Fourteenth Amendment equal protection principles.

I agree with Franks, generally, with regard to the harms inflicted on women (more than on men) and society by revenge porn.13 But that isn’t a legal argument.

The weakness in Franks’s legal argument that the harms of revenge porn trump the First Amendment is in two excerpts from R.A.V. v. City of St. Paul, quoted in part by Franks in her footnote supporting her assertions that “regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment,”14 and “Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of ‘expression,’ have been upheld by the Supreme Court”:

Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is justified without reference to the content of the speech,…. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

and

[S]ince words can in some circumstances violate laws directed not against speech, but against conduct…a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech… Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.

In the case of Franks’s proposed revenge-porn statute, unlike in the hypothetical situations discussed in these passages from R.A.V.,15 the conduct is targeted on the basis of its expressive content. In other words, R.A.V. is in the dicta explicitly not talking about content-based restrictions on speech such as Franks’s proposed statute.

The RAV court notes, more germanely:

We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.

The holding of R.A.V. is directly contrary to the position that Franks takes: St. Paul’s ordinance, which prohibited fighting words that “insult, or provoke violence, on the basis of race, color, creed, religion or gender” was struck down by the Supreme Court because “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” In other words, if the State is going to prohibit unprotected fighting words, it cannot prohibit some fighting words but not others based on their content.

“The point of the First Amendment,” wrote the Court in R.A.V., “is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”

Ultimately, even in the terms she chooses Franks’s discrimination argument is a dishonest one. “Regulations that are predominantly concerned with harmful secondary effects,” she writes, “rather than the expressive content of particular conduct do not violate the First Amendment.” While Franks may be predominantly concerned with the harmful secondary effects of the conduct, her proposed statute is predominantly concerned with the expressive content of the speech. I suggest that she try her hand at drafting a non-content based statute dealing with the harmful secondary effects of revenge porn.

Volokh

Franks quotes Eugene Volokh in support of the constitutionality of her proposed statute:

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts.

Volokh, unlike Franks and Citron a First Amendment scholar, is not actually endorsing Franks’s proposed statute as a “suitably clear and narrow statute.” In the same post he notes Stevens‘s strong statement against expansion of categories of unprotected speech, and writes:

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

It may be true: the Court could rewrite the obscenity exception to cover not only what is today recognized as obscenity—works that appeal to the prurient interest; depict or describe, in a patently offensive way, sexual conduct; and lack serious literary, artistic, political, or scientific value—but also mere nudity, even if it is not patently offensive and does have serious artistic value. If it did that, then revenge porn could be obscene. But this amounts to speculative legal fiction. It could happen, but it is not, I think, likely.

Still, while it’s not what I see in the tea leaves of Stevens,16 it may be that the Supreme Court will some day recognize a category of unprotected speech including revenge porn.17 Until then, though, any lower court considering the issue will be constrained by Supreme Court precedent to find such a statute unconstitutional.


  1. That is, not a “public figure.” 

  2. That is, that the defamer knew of the falsity of his statements or had reckless disregard for the truth. 

  3. As opposed to actual damages that he could prove. 

  4. As must a public figure suing for defamation. 

  5. Unless, of course, the blogger’s intimate parts are revealed. 

  6. The father of a dead Marine sued the vile Westboro Baptist Church for intentionally inflicting emotional distress upon him. 

  7. That is, it is not essential to the decision in the case. 

  8. I assume for purposes of this post that the law professors trying to justify these statutes are not as ignorant of First Amendment law as Hanlon’s Razor would suggest. 

  9. “Then there’s a whole cat­e­gory of peo­ple who aren’t con­fused at all – let’s call this the ‘threat­ened sex­ist’ cat­e­gory.” 

  10. Which is not to say that if it was obscene when he distributed it, it was obscene when she gave it to him: obscenity depends on the community. She might give him a sexually explicit picture, not obscene as to adults, and he might distribute it to children, as to whom it could be obscene. 

  11. Is there a term for this sort of dishonesty, in which the speaker includes a limiting word to imply that the broader statement would not be true? 

  12. A civil wrong. 

  13. Franks calls it “nonconsensual,” but it was consensually created. 

  14. Not true—the holding in R.A.V. 

  15. Once again, Franks quotes dicta as authority. As we shall see shortly, R.A.V. does not stand for the proposition that content restrictions are justified by the discriminatory effect of the content. 

  16. There was a single dissenter—Justice Alito—in Stevens. This is not a court eager to find a new category of unprotected speech out of outrage. I suspect that the common “if they don’t want naked pictures of them published, they shouldn’t share them” argument will resonate with the Court. 

  17. In my view, the argument about Weiner’s selfies is premature until revenge porn generally fits into some unprotected category. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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28 Responses to Are Statutes Criminalizing Revenge Porn Constitutional?

  1. shg says:

    A very thorough parsing of the law. I suspect you’ve just out-prawfed the lawprofs. The only question remaining is whether they will have the fortitude to recognize your efforts, or will do everything possible to deny the existence of your post and the merit of your points.

    And that applies to all the lawprofs, not just Franks and Citron. Exceptionally well done.

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  3. Marc J. Randazza says:

    Your post is sexist.

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  5. David Sugerman says:

    Spectacular. Thank you.

    My work in this area has been episodic and has focused on civil remedy for torts committed via speech. That broadly falls in the 4th category above.

    Seems to me that relying on civil claims would ease much of the 1st Am taint. The civil remedy approach brings in a countervailing reputation and remedy rights of the revenge porn victim.

    I suppose a 1st Am absolutist might dispute even a civil remedy approach. If so, my take is that the Am1 absolutist needs to recognize the legitimate competing right to a remedy. But I’m floored, regardless, that the genius law profs stampede to criminalize speech.

    Thanks for a great post, Mark. Helluva lot of sweat in this one!

  6. Pingback: Why statutes criminalizing revenge porn are unconstitutional | a public defender

  7. Randy Peach says:

    You say that the Court has never employed a “balancing test” to determine whether speech is protected. Maybe not expressly, but our courts obviously do so in practice. When speech is not so harmful and seems to serve a purpose, we say it is protected “free speech” and is important to a free-thinking society. We repeat the maxim that “government should not ban speech simply because it disagrees with its content!” and we clap ourselves on the back and feel good that we are so tolerant of speech we “do not like.” However, when the speech at issue is extremely harmful (e.g., child pornography, or “fighting words”) we forget these maxims and go about justifying the banning of the speech. We say that the “speech” is not really speech at therefore can be banned. So why not admit to this “balancing act” and simply have the courts expressly employ a cost-benefit analysis to First Amendment questions? They already do it anyway. (And we do it for search-and-seizure questions under the Fourth Amendment as well).

    • Mark Bennett says:

      Why? Because if you are correct—if courts apply a balancing test but lie about it—then the shame of lying about it might be the thing keeping them from banning all unpopular speech. Please see my last paragraph, about tea leaves, and reread Stevens.

  8. Adrian Sloan says:

    I would simply go with child pornography being an example of a case where the court has not seen fit to relax the historic understanding of obscenity. I don’t think there is any requirement that just because the boundaries around obscene material have been made much stricter with just about any other subject matter that it happen for all possible modes of obscene material.

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  10. Max Kennerly says:

    Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2734 (2011) noted that “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct,’” and that Stevens was “a State’s attempt to shoehorn speech about violence into obscenity.”

    Criminalization of revenge porn is quite different, because it’s not “a State’s attempt to shoehorn speech about violence into obscenity,” it’s criminalization of certain “depictions of sexual conduct.” I imagine the State would argue revenge porn was a combination of “obscenity” and “defamation,” both of which fall within the traditional exceptions to First Amendment protections. Revenge porn isn’t quite either of those, but the essential right has a long history — the State would point to the fact that privacy tort claims date back to the 1880s and 1890s, preceding by decades the Warren Court’s heightened application of the First Amendment, and that Dun & Bradstreet makes quite clear that traditional common law torts relating to matters of private concern still survive today, though modified to eliminate presumptions against the defendant, and that it’s not a reach to apply this to criminal laws, particularly since SCOTUS has always been hunky-dory with torts involving matters of private concern.

    You are correct that SCOTUS have never drawn a public/private speech distinction in criminal law, but it’s also never said such a distinction was improper in evaluating criminal statutes — and if you go back to the pre-Warren days, that distinction is largely non-existent, it was created to give the SCOTUS an opportunity to provide media defendants greater protections from defamation lawsuits, like in Sullivan v. The New York Times. Notably, in Alvarez, SCOTUS freely moved in and out of criminal and civil precedent, never drawing any distinction between the two — in fact, the Court tied Sullivan and Garrison together.

    Synder is a double-edged sword; the essence of Synder was that the protestors were lawfully in the place they were protesting, presenting a protected message, and thus the First Amendment trumped civil liability. The people posting revenge porn would likely argue that, by virtue of the other person’s consent to have the photographs taken, the posting was inherently lawful — but this argument only goes so far until it runs into problems of copyright, of misappropriation of likeness, and of the extent of the consent given. The posters don’t really have the right to post the materials in the same way Westboro Baptist had a right to be on that street corner.

    I personally do see a big distinction between civil liability and criminalization, and I think any statute criminalizing speech that isn’t integral to some non-speech criminal conduct (fraud, conspiracy, etc) is facing a steep uphill climb, but, well, Justice Scalia, author of Brown just gave an interview recommending federal judges have a giant rubber stamp that says “STUPID BUT CONSTITUTIONAL.” The Stolen Valor Act, a purely speech-based criminal statute, is back on the books, and it seems totally compliant with the Alvarez opinion.

  11. Ryan Havvy says:

    If this is indeed the case, contracts making revenge porn disallowed would be very useful.

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  17. andrews says:

    Probably I am missing something on the civil side.

    In general, as I understand it, people in the porn industry and in many other photography-intense industries sign what are called “model releases” giving permissing to use the images taken for certain or all purposes. If such a release is not in place, we ought to be able to rely on the civil remedy.

    This has the advantage of avoiding the heavy and not-incredibly-competent hand of the state in regulating content.

    • Mark Bennett says:

      If such a release is not in place, we ought to be able to rely on the civil remedy.

      How sure are you of that?

      • andrews says:

        How sure are you of [proper remedy through model release]

        Not sure of anything except that taxes will increase. Death is very likely but some smart people are working on that

        Beyond that, I’m pretty confident that criminalization is not a workable remedy. First amendment issues, and the problems of proof, make this seem an unpromising avenue. There is also a likely problem of bringing the charges in your state, where the defendant is in a different state and the web server is somewhere else possibly out of reach.

        On the other hand, assuming you are in a state which recognizes a right of publicity [use of name/likeness] you may find a private cause of action giving rise to some sort of remedy. At least the proof is easier, because the person whose likeness is used is there to offer evidence as to license for its use.

        It is also “better” in the sense that the offended person is directly involved. We are not relying on the vicissitudes of assistant state’s attorneys.

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